0120130991
05-23-2013
Roger A. Moore, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Roger A. Moore,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120130991
Agency No. 200H-0301-2012101249
DECISION
On December 23, 2012, Complainant filed an appeal from the Agency's November 21, 2012, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Veterans Service Representative at the Agency's facility in Boston, Massachusetts.
The record indicated that on January 4, 2012, Complainant contacted the EEO Counselor regarding his removal action. When the matter was not resolved, Complainant was issued the Notice of Right to file his formal complaint. On February 14, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Black) and disability when:
1. From August 2011 to November 23, 2011, the Agency failed to provide him with a second Performance Improvement Plan as his request for a reasonable accommodation.
2. On November 23, 2011, Complainant was removed from his position.
The Agency broke up Complainant's claim regarding his request for a reasonable accommodation into two parts. The Agency broke the claim in to:
1(a). From August 2011 to November 19, 2011, Complainant was denied his request for a second PIP; and
1(b). From November 20-23, 2011, Complainant was denied his request for a reasonable accommodation in the form of a second PIP.
The Agency accepted claims (1)(b) and (2) for investigation. The Agency dismissed claim (1)(a) pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely contacting the EEO Counselor. The Agency noted that Complainant's contact with the EEO Office occurred on January 4, 2012. The Agency found that Complainant's requests from November 20, 2011, and onward were within 45 days of his contact. Therefore, the Agency accepted the two discrete acts of claims (1)(b) and (2) and dismissed claim (1)(a).
At the conclusion of the investigation of claims (1)(b) and (2), the Agency provided Complainant with a copy of the report of investigation on June 26, 2012. The Agency indicated that the matter was a mixed case compliant and that Complainant would be able to file an appeal with the Merit Systems Protection Board (MSPB). The Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency noted that Complainant's claim (2) involved a mixed case complaint. As such, the Agency provided Complainant with appeal rights to the MSBP, not EEOC. Further, the Agency found that claims (1)(a) and (1)(b) were appealable to the Commission and provided Complainant with appeal rights to the EEOC solely on these claims.
This appeal followed.
ANALYSIS AND FINDINGS
A "claim" refers to an assertion of an unlawful employment practice-or policy for which, if proven, there is a remedy under the Federal equal employment statutes. Fragmentation often results from a failure to distinguish between the claim the complainant is raising and the evidence (actual information) he or she is offering in support of that claim. EEOC's Management Directive (MD)-110, Ch. 5, III.
In this case, the Agency improperly defined the claim in the complaint at hand by fragmenting it. Upon review of the record, we determine that Complainant alleged a single claim of discrimination. Specifically, Complainant alleged that he was subjected to discrimination on the bases of race and disability when, on November 23, 2011, he was removed. In support of his claim of disability-based discrimination, Complainant indicated that he was removed due to the Agency's failure to provide him with a second PIP which he requested as a form of reasonable accommodation. Therefore, we determine that the Agency's dismissal of part of Complainant's claim of denial of reasonable accommodation was not appropriate.
Further, the Agency, when it fragmented the complaint, determined that the denial of reasonable accommodation was appealable to the EEOC and the removal action was a mixed case complaint appealable to the MSPB. A mixed case complaint is a complaint of employment discrimination filed with a federal agency, related to or stemming from an action that can be appealed to the MSPB. See 29 C.F.R. � 1614.302(a)(1). As a general rule, issues not appealable to the MSPB should be processed separately from issues which are appealable to the MSPB. Stan v. Dep't of the Air Force, EEOC Request No. 05960266 (May 19, 1998) (citing Mascarenas v. Dep't of Defense, EEOC Request No. 05920240 (May 18, 1992)).
Upon review, the Commission finds that the denial of reasonable accommodation allegations raised in Complainant's complaint which directly led to his removal are inextricably intertwined and merged with his removal which is appealable to the MSBP, not EEOC. As such, the Agency should have issued its final decision providing appeal rights only to the MPSB.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency's final decision and REMAND the matter for further processing in accordance with the ORDER below.
ORDER
The Agency is ordered to take the following remedial action:
I. To the extent the Agency did not investigate Complainant's assertion that he was denied a reasonable accommodation from August 2011 to November 19, 2011, which led directly to his removal, the Agency shall conduct a supplemental investigation within 30 calendar days.
II. Following the investigation, the Agency shall provide a copy of the supplemental record for Complainant's review.
III. The Agency shall issue a new final decision addressing Complainant's claim based on his race and/or disability when he was removed from his position on November 23, 2011, because he was denied a reasonable accommodation. The Agency's final decision shall provide Complainant with new appeal rights to the MSPB, not EEOC.
IV. The agency shall complete all of the above actions within 60 calendar days from the date on which the decision becomes final.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 23, 2013
__________________
Date
2
0120130991
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130991